ARVIND KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) -This application has been filed by the applicants Arvind Kumar, Laxmi Narain, Deen Dayal alias Mukesh Kumar, Govind Ram, Nek Singh and Prem Kumar with a prayer to quash the order dated 30.1.2008 passed by the learned C.J.M., Hathras in Criminal Case No. 1036 of 2003 whereby the application under Section 190 (1) (b), Cr. P.C. filed by O.P. No. 2 Mahesh Chand Vasistha has been allowed and the applicants have been summoned to face the trial for the offence punishable under Sections 323, 504, 506, 363 and 364, I.P.C. and to quash the entire proceedings of Criminal Case No. 1036 of 2003, State v. Arvind Kumar and others pending in the court of learned C.J.M., Hathras.

(2.) THE facts in brief of this case are that an application dated 30.4.2003 under Section 156 (3), Cr. P.C. has been filed by the O. P. No. 2, the same was allowed by the learned C.J.M., Hathras on 30.4.2003 directing the officer-in-charge of P. S. Kotwali, Hathras to lodge the F.I.R. and investigate the same, in pursuance of this order dated 30.4.2003 the F.I.R. was registered at P. S. Kotwali, Hathras on 7.5.2003 at 1.10 p.m. in Case Crime No. 86 of 2003 under Sections 323, 504, 506, 363 and 364, I.P.C. in which the applicants Govind Ram, Arvind Kumar, Laxmi Narain, Deen Dayal, Nek Singh and Prem Kumar were named as accused but after investigation the charge-sheet dated 14.5.2003 was submitted by the Investigating Officer in the court of learned C.J.M., Hathras against the applicants Arvind Kumar alias Pappu, Mukesh Kumar alias Deen Dayal, Nek Singh and Prem Kumar for the offence punishable under Sections 323 and 504, I.P.C. but the applicants Laxmi Narain and Govind Ram were charge-sheeted. On the basis of the charge-sheet submitted by the Investigating Officer the learned C.J.M. has taken cognizance on 5.6.2003. O. P. No. 2 filed a Criminal Revision No. 104 of 2003 against the above mentioned order dated 5.6.2003, the same was dismissed on 22.1.2005 by the learned Additional Sessions Judge/ F.T.C. II, Hathras, thereafter O. P. No. 2 moved an application dated 12.10.2006 in the Court of learned C.J.M., Hathras with a prayer that the applicants Govind Ram and Laxmi Narain, who were named in the F.I.R. and sufficient material has been collected by the Investigating Officer against them also during investigation, may also be summoned to face the trial. THEreafter, due to non-appearance of O. P. No. 2 and his counsel, the same was rejected by the learned C.J.M., Hathras on 2.6.2006. THEreafter, an application dated 12.12.2007 under Section 190 (1) (b), Cr. P.C. has been filed by O. P. No. 2 with a prayer that four accused who have been charge-sheeted, may be summoned under Sections 323, 504, 506, 363 and 364, I.P.C. because the charge-sheet was submitted against them only under Sections 323, 504 and 506, I.P.C. and the applicant Govind Ram and Laxmi Narain may also be summoned to face the trial by way of amending the order of cognizance taken by the learned Magistrate concerned, the same was dismissed by the learned C.J.M., Hathras on 23.4.2007. It was challenged by O. P. No. 2 before this Court by way of filing Criminal Application No. 20257 of 2007, the same was disposed of on 20.6.2007 in which the order dated 23.11.2004 was set aside and the learned C.J.M. was directed to pass a fresh order in accordance with the provisions of law, thereafter, the learned C.J.M., Hathras has allowed the application filed by the applicants on 30.1.2008 and the applicants were summoned to face the trial for the offence punishable under Sections 323, 504, 506, 363 and 364, I.P.C., being aggrieved from the order dated 30.1.2008 the present application has been filed by the applicants.

(3.) IT is further contended that after perusing the police report the learned C.J.M., Hathras has taken cognizance of the alleged offence punishable under Sections 323 and 504, I.P.C. only against four persons, but the process was not issued against the applicants Laxmi Narain and Govind Ram because they were not summoned by the learned Magistrate concerned, once the learned Magistrate concerned has taken the cognizance and not issued the process against the applicants Laxmi Narain and Govind Ram, it was not open to the learned Magistrate concerned to issue process against the applicants Laxmi Narain and Govind Ram also because at subsequent stage they may be summoned in exercise of the power conferred under Section 319, Cr. P.C. In the present case, the learned C.J.M. has committed manifest error of law by taking cognizance of the alleged offence under Sections 323, 504, 506, 363 and 364, I.P.C. whereas the charge-sheet was submitted only under Sections 323 and 504, I.P.C. on which the learned Magistrate concerned had already taken cognizance for the offence punishable under Sections 323 and 504, I.P.C. against four applicants and the learned Magistrate concerned has committed manifest error by way of issuing process against the applicants Laxmi Narain and Govind Ram also, who were not charge-sheeted by the Investigating Officer and the process was not issued against them on earlier occasion at the time of taking the cognizance because the process was issued against four applicants who were charge-sheeted.